MEMORANDUM OF CONSIDERATION


IN THE CASE OF:


         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2002068222

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian
Mr. Hubert O. Fry, Jr
Mr. Thomas E. O'Shaughnessy, Jr.

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his under other than honorable conditions discharge be upgraded to a general under honorable or an honorable discharge.

APPLICANT STATES: In effect, that he and his wife were having marital problems because of military life and that after his discharge from service, they divorced. He adds that he went through the chain of command, had a stack of papers turned in to the battalion commander and in March there was a change of command. The commander called him into his office, told him that he did not need out of the Army and tore up the paper work. The applicant submits no evidence to support neither these contentions nor his request for an upgrade of his discharge.

EVIDENCE OF RECORD: The applicant's military records show that the applicant enlisted in the Army's Delayed Enlistment Program on 25 March 1977 and entered active duty for four years on 28 March 1977 as a Private, pay grade E-1. Following completion of Basic Combat Training, he completed Advanced Individual Training and was awarded the primary military occupational specialty (PMOS) 17K, Ground Surveillance Radar Crewman. He was assigned to the 2^nd Battalion, 19^th Infantry at Fort Stewart, Georgia, as his first duty station on 14 July 1977. He was later reassigned to another Fort Stewart-based unit, the 24^th Military Intelligence Detachment on 27 June 1978.

The applicant's military personnel records show that he was promoted to Private First Class, pay grade E-3 on 1 March 1978. This is the highest rank and pay grade that he held while on active duty.

The applicant served without difficulty until 8 January 1979 when he departed Absent Without Leave (AWOL) for two days. Three days after his return, he was arrested by civil authorities. He served three days in civil confinement and was released. He returned to military control on 15 January 1979.

On 16 May 1979, he departed AWOL and remained in that status until 23 July 1979. He returned to military control at Fort Sill, Oklahoma.

On 2 August 1979, special court-martial charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ), AWOL for the period from 16 May through 22 July 1979.

On 7 August 1979, the applicant requested discharge for the good of the service under the provisions of AR (Army Regulation) 635-200, chapter 10. His request acknowledged that he understood the nature and consequences of the Under Other Than Honorable Conditions (UOTHC) discharge that he might receive; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; that he was making the request of his own free will without coercion whatsoever from any person; and that under no circumstance did he desire further rehabilitation because he had no desire to perform further military service.

The record reveals that he elected not to make a statement prior to his separation.

There is no evidence of record that the applicant ever applied for a compassionate reassignment or a hardship discharge either before or after his periods of AWOL.

On 21 August 1979, the applicant's commander recommended approval of his request. The intermediate commander concurred and recommended that a discharge UOTHC be issued.

The request for discharge was approved by the approval authority, a colonel, on 27 August 1979 and directed that the applicant be discharged no later than
3 September 1979 and that he be provided a DD Form 794A, Other than Honorable Conditions Discharge Certificate. Accordingly, the applicant was discharged in the rank and pay grade PV1, E-1, UOTHC on 3 September 1979. On the date of his discharge, he had 2 years, 2 months and 25 days creditable service and 73 days time lost.

The applicant applied to the Army Discharge Review Board (ADRB) for review and upgrade of his UOTHC discharge on 7 February 1980. At this time he offered no issues of propriety or equity to warrant an upgrade of his discharge and the ADRB determined that he had been properly discharged. The Army Discharge Review Board denied his application and notified him of their decision on 28 October 1981.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s

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service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board considered the applicant’s contention that his marital problems were the proximate cause of his discharge; however, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

2. There is no evidence that the applicant ever applied for a compassionate reassignment or a hardship discharge to resolve any marital issues he might have been faced with either before or after the recorded periods of AWOL.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ). The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

4. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that before requesting discharge.

5. Finally, the Board considered the applicant’s entire record of service. The Board, is convinced that the reason for discharge and the characterization of service were both proper and equitable, Further, it has determined that the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his UOTHC discharge to a general or an honorable discharge.

6. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__aao___ __hof___ __teo___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002068222
SUFFIX
RECON
DATE BOARDED	20020430
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19790903
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A01.33
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0133
2.
3.
4.
5.
6.